Major gain for judges’ independence

George Washington believed it was his patriotic duty, when he served as commander-in-chief during the Revolutionary War, to refuse any salary. But the Founding Fathers believed passionately that, when the new government was formed in 1787, its officers should be paid.

And that included judges who would sit on the newly created federal courts. The Constitution’s Article III guarantees that federal judges’ pay “shall not be diminished” while they serve.

That has been, from the beginning, one of the ways the Founders guaranteed the independence of the federal judiciary (another was a promise of life tenure “during good behavior”). But for the past 34 years, federal judges have been pursuing a series of lawsuits, claiming that Congress has frequently acted in ways that – in real-dollar terms – reduced their pay, in violation of the Compensation Clause.

The theory was that, if a federal judges’ pay remains constant, it will be eroded over time by the effects of inflation in money’s value.

Last Friday, that legal struggle finally resulted in a historic constitutional victory for the judges – a victory that is likely to be tested in the Supreme Court before it could take final effect. The U.S. Court of Appeals for the Federal Circuit – a specialized court that decides claims for money from the federal government – ruled by a 10-2 vote that Congress has several times violated a promise made in 1989 to give federal judges an annual cost-of-living increase in their pay level.

The decision does not mean that Congress has lost the power to set federal judges’ salary levels, or that it has a constitutional duty to give them a period, inflation-countering raise. But it does mean that Congress cannot promise a raise, and then break that promise, and that the lawmakers cannot take steps that reduce the value of a sitting judge’s salary scale.

The judges’ fight has been a long-running labor for them and their lawyers, and the issue raises such fundamental constitutional questions that it has gone to the Supreme Court, in one form or another, three times. It almost certainly will return there again, because the Justice Department does not believe the judges have a valid claim that the Compensation Clause has been violated, and the Department has the authority to seek Supreme Court review.

The Federal Circuit Court’s ruling in the judges’ favor (in the case of Beer v. U.S.) is a strong statement of support for judicial independence, and for the role that a secure salary plays in helping to protect that independence. In the Declaration of Independence, the court recalled, America’s revolutionary generation protested that the King of England had made judges depend upon his grace for their tenure and for their pay.

Alexander Hamilton wrote in The Federalist Papers: “Next to permanence in office, nothing can contribute more to the independence of the judges than a fixed provision for their support.”

The Compensation Clause thus gives federal judges, according to the Federal Circuit Court’s ruling, the expectation that there will be a “maintenance of real salary level.” In 1989, when Congress wrote a complete overhaul of compensation and ethics rules for those employed by the federal government, it promised judges that they would get an automatic cost-of-living increase, when others working for the government did so, the Circuit Court noted.

But in a number of years after that, Congress approved a cost-of-living adjustment for other federal employees, but not for federal judges. That is the differing treatment that the Circuit Court decided had broken a constitutionally guaranteed promise to the sitting judges.

Under the 1989 law, the opinion said, “all sitting judges are entitled to expect that their real salary will not diminish due to inflation or the action or inaction of the other branches of government. The judicial officer should enjoy the freedom to render decisions – sometimes unpopular decisions – without fear that his or her livelihood will be subject to political forces or reprisal from other branches of government.”

Moreover, it said, lawyers who are contemplating becoming federal judges should also “enjoy the same expectation of independence and protection.”

The sessions of Congress that sat after 1989, the court concluded, “could not renege on that commitment without diminishing judicial compensation.”

From earlier trips of this dispute to the Supreme Court, it appears that at least a handful of the Justices are already sympathetic to the judges’ claim. But there is no way, before the Supreme Court could review the case, to know whether that would turn out to be the majority’s view.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.